------ / SOCIALISTREPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 118/2015/ND-CP / Hanoi, November 12, 2015
DECREE
GUIDELINES FOR SOME ARTICLES OF THE LAW ON INVESTMENT
Pursuant to the Law on Government organization dated December 25, 2001;
Pursuant to the Law on Investment dated November 26, 2014;
Pursuant to the Law on Investment dated November 26, 2014;
At the request of the Minister of Planning and Investment,
The Government promulgates a Decree to provide guidelines for some Articles of the Law on Investment
Chapter I
GENERAL PROVISIONS
Article 1. Scope and regulated entities
1. This Decree elaborates and provides guidelines for some Articles of the Law on Investment on application, control, announcement of conditions for investment; measures for investment assurance, investment incentives; investment procedures, execution of investment projects, and management of investment by regulatory bodies.
2. This Decree applies to investors, competent authorities, organizations, and individuals involved in investment.
Article 2. Interpretation of terms
In this Circular, the terms below are construed as follows:
1. Valid copy means a copy extracted from the master register or a copy authenticated by a competent authority, or a copy that has been compared with the original, or a copy printed from the national database about residents, enterprise registration, and investment.
2. Vietnam’s WTO Schedule of specific commitments in services (hereinafter referred to as “Vietnam’s WTO Schedule of commitments”) means the document No. WT/ACC/48/Add.2 dated October 27, 2006 of the Working Party on the Accession of Vietnam, including general commitments, commitments of sectors and sub-sectors, and list of MFN exemptions.
3. National Foreign Investment Web Portal means the web portal used to follow procedures for issuance, adjustment of the Investment Registration Certificate; posting and updating legislative documents, policies, investment conditions applied to foreign investors; updating and accessing information about investment promotion and foreign investment in Vietnam.
4. National Foreign Investment Database means a collection of information about foreign investment projects nationwide that is stored and managed in the National Foreign Investment Information System.
5. Incentive-applying authority means the authority having the power to apply tax incentives, land incentives, and other kinds of incentives prescribed by law.
6. Investment conditions applied to foreign investors are conditions that foreign investors must satisfy before making investment in the business lines subject to conditions applied to foreign investors specified in relevant Laws, Ordinances, Decrees, and international agreements on investment. Investment conditions applied to foreign investors are applied in the following cases:
a) Investment in establishment of a business organization;
b) Investment in the form of capital contribution, purchase of shares/stakes in a business organization;
c) Investment in the form of a business cooperation contract;
d) Receipt of an investment project;
dd) Change or addition of business lines of a foreign-invested business organization.
7. Investment conditions are conditions that every organization and individual must satisfy when making investment in the business lines specified in Appendix 4 of the Law on Investment according to relevant Laws, Ordinances, Decrees, and international agreements.
8. International agreement on investment means an agreement to which Socialist Republic of Vietnam is a signatory which specifies rights and obligations of Socialist Republic of Vietnam to investment by investors from the nations that are signatories of the agreement. Such agreements include:
a) Protocol on the accession of the Socialist Republic of Vietnam to WTO dated November 07, 2006;
b) Bilingual agreements on encouragement and protection of investment;
c) Other free trade agreements and regional economic integration agreements;
d) Other international agreements specifying rights and obligations of Socialist Republic of Vietnam to investment.
9. National Foreign Investment Information System is a system used for issuing, adjusting, revoking Investment Registration Certificates; sending, receiving, storing, displaying data to serve management of foreign investment by the State. National Foreign Investment Information System consists of: National Foreign Investment Web Portal, National Foreign Investment Database, National Investment Promotion Database, and infrastructure system.
10. Application for investment registration means an application compiled by an investor for issuance, adjustment, revocation of the Investment Registration Certificate, decision on investment guidelines, and following other investment procedures prescribed by the Law on Investment and this Decree.
11. A valid application means an application that contains sufficient documents specified in the Law on Investment, this Decree, and such documents contain sufficient information as prescribed by law.
12. The Law on Investment means the Law No. 67/2014/QH13 ratified by the National Assembly of the Socialist Republic of Vietnam on November 26, 2014.
13. The Law on Investment 2005 means the Law No. 59/2005/QH11 ratified by the National Assembly of the Socialist Republic of Vietnam on November 29, 2005.
14. Sectors and sub-sectors excluded from commitments are those specified in Vietnam’s WTO Schedule of commitments and other international agreements on investment in which the Socialist Republic of Vietnam is entitled to regulate or not to regulate investment conditions, or prohibit foreign investors from making investments in such sectors and sub-sectors of services.
15. Investment capital of a project means the capital contributed by the investor and capital raised by the investor to execute the investment project written on the decision on investment guidelines and/or Investment Registration Certificate.
16. Rural area means an administrative division that does not include wards and districts in urban areas.
Article 3. Assurance of investment when law is change
1. Where a new legislative document promulgated by a competent authority changes investment incentives that have been applied to investors before such document comes into force, investors shall have their investment incentives guaranteed in accordance with Article 13 of the Law on Investment.
2. Guaranteed investment incentives mentioned in Clause 1 of this Article are incentives to which an investor is entitled according to legislative documents applicable before the effective date of the new legislative document, including:
a) Investment incentives specified in an Investment License, Business License, Investment Incentive Certificate, Investment Certificate, Investment Registration Certificate, decision on investment guidelines, or other documents issued by a competent authority;
b) Investment incentives to which the investor is entitled as prescribed by law other than those specified in Point a of this Clause.
3. When an investment assurance measure is needed as prescribed in Clause 4 Article 13 of the Law on Investment, the investor shall submit a written request to the investment registration authority together with the Investment License, Business License, Investment Incentive Certificate, Investment Certificate, Investment Registration Certificate, decision on investment guidelines, or other documents issued by a competent authority which specifies investment incentives (if any). The written request shall contain:
a) Name and address of the investor;
b) The investment incentives applicable before the effective date of the new legislative document, including: Types of incentives, conditions for receiving incentives, levels of incentives (if any);
b) The content of the new legislative document which changes the investment incentives mentioned in Point b of this Clause;
d) The investor’s request for implementation of an investment incentive assurance measures specified in Clause 4 Article 13 of the Law on Investment.
4. The investment registration authority shall decide the implementation of investment incentive assurance measure within 30 days from the receipt of the valid application as set out in Clause 3 of this Article. The investment registration authority shall submit the cases beyond its competence to competent authority.
Article 4. Language of application for investment registration
1. The language of the application for investment registration, documents, and reports submitted to a competent authority shall be Vietnamese.
2. If the application has a document in a foreign language, the investor must enclose a valid Vietnamese translation to such document.
3. If a document in the application is written in both Vietnamese and a foreign language, the Vietnamese version shall be used to implement investment procedures.
4. The investor is responsible for any discrepancy between the translation or copy and the original, and between the copy in Vietnamese version and foreign language version.
Article 5. Codes of investment project
1. A code of an investment project is a 10-digit number automatically generated by National Foreign Investment Information System and written on the Investment Registration Certificate.
2. Each investment project has a single code which remains unchanged throughout the operation of the project and must not be given to another project. The code of an investment project expires when the investment project is shut down.
3. With regard to an investment project executed according to the Investment Certificate, Investment License, or another equivalent document, the code of the investment project is the number of the Investment Certificate, Investment License, or the equivalent document issued to the investment project. Where the Investment License, Investment Certificate, or the equivalent document is adjusted, the investment project will be issued with a new code as specified in Clause 1 of this Article.
4. Competent authority shall use codes of investment projects uniformly to manage and exchange information about investment projects.
Article 6. Rules for following investment procedures
1. When receiving an application for investment registration and resolving investment procedures, the investment registration authority shall assess the validity of the application. The investor is legally responsible for the legitimacy, accuracy, truthfulness of the application for investment registration and documents submitted to the competent authority.
2. The investment registration authority must not require the investor to submit any documents together with the application for investment registration other than those specified in the Law on Investment and this Decree.
3. When an application for investment registration needs to be supplemented, the investment registration authority shall send a written notification of necessary supplementations to the investor (applicant). The notification must specify the supplementations and reasons.
4. While following administrative procedures for investment, the enquired agencies shall make comments about the investment project by the deadline specified in the Law on Investment and this Decree. If an agency does not make any comments by the deadline, it is considered that it concurs with the content of the investment project under its management.
5. The competent authority shall send a written notification to the investor and provide explanation if the application for issuance/adjustment of the decision on investment guidelines, Investment Registration Certificate, or other investment procedures is rejected according to the Law on Investment and this Decree.
6. The investment registration authority and other regulatory bodies shall not settle disputes among investors and between investors and relevant entities during the course of investments.
Article 7. Addressing inaccurate, fraudulent documents
1. Where information provided in the application for investment registration is found inaccurate, within 05 working days from the day on which the valid application is received, the investment registration authority shall request the investor to remake it.
2. If there are grounds to determine that an investor use fraudulent documents in the application for issuance or adjustment of the Investment Registration Certificate, the investment registration authority shall make a notification of the investor’s violations and invalidate the Investment Registration Certificate or cancel the adjustments to the Investment Registration Certificate which are based on fraudulent information and restore the original Investment Registration Certificate based on the latest valid application, and notify a competent authority.
3. The investor is responsible for the damage caused by provision of incorrect information or use of fraudulent documents.
Chapter II
BUSINESS LINES
Section 1. IMPLEMENTATION OF REGULATIONS ON BUSINESS LINES BANNED FROM INVESTMENT AND BUSINESS LINES SUBJECT TO CONDITIONS
Article 8. Implementation of regulations on business lines banned from investment
1. Organizations and individuals must not make investment in the business lines specified in Article 6 and Appendix 1 through 3 of the Law on Investment.
2. The manufacturing, use of products specified in Appendix 1 through 3 of the Law on Investment for analysis, testing, scientific study, healthcare, manufacture of pharmaceutical products, criminal investigation, national defense and security are specified below:
a) Permission for production and use of narcotic substances specified in Appendix 1 of the Law on Investment are specified in regulations of the Government on the list of narcotic substances and precursors, Single Convention on Narcotic Drugs 1961, and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988;
b) Permission for production and use of chemicals and minerals specified in Appendix 1 of the Law on Investment are specified in regulations of the Government management of controlled chemicals under Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, instructional documents of Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;
c) Permission for the use of specimens of wild flora and fauna specified in Appendix 3 of the Law on Investment is specified in regulations of the Government on management of rare, endangered wild flora and fauna, and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Article 9. Implementation of regulations on business lines subject to conditions and investment conditions
1. Individuals and business organizations may make investment in the business lines subject to conditions specified in Appendix 4 of the Law on Investment if all conditions are fulfilled and the fulfillment of such conditions is maintained throughout the course of business.
2. Investment conditions include:
a) License;
b) Certificate of eligibility;
c) Practising certificate;
d) Certificate of professional liability insurance;
dd) Written certification;
e) Documents other than those specified in Point a through dd of this Clause;
g) Conditions that must be fulfilled to make investment without the written certification or approval specified in Point a through e of this Clause.
3. Every individual or organization that fulfills investment conditions is entitled to the documents specified in Point a through e Clause 2 of this Article (hereinafter referred to as licenses) or to make investment and do business when the conditions specified in Point g Clause 2 of this Article are fulfilled. If the issuance, renewal, adjustment, or supplementation of a license is rejected, the competent authority must send a written notification to the applicant and provide explanation.
4. While following administrative procedures for issuance of a license or fulfilling the conditions specified in Point g Clause 2 of this Article, it is not required to write the business lines subject to conditions on the Certificate of Enterprise Registration.
Article 10. Implementation of regulations on investment conditions applied to foreign investors
1. Investment conditions applied to foreign investors mentioned in Clause 6 Article 2 of this Decree include:
a) Ratio of the foreign investor’s charter capital in a business organization;
b) Investment method;
d) Scope of investment;
d) Vietnamese partners participating in the investment;
Other conditions specified in Laws, Ordinances, Decree, and international agreements on investment.
2. Rules for applying investment conditions to foreign investors
a) A foreign investor that makes investment in various business lines must fulfill all conditions applied to these business lines;
b) A foreign investor that is regulated by international agreements on investment that provide for different investment conditions may apply the investment conditions provided for in one of such international agreements and must fulfill the foreign investor’s rights and obligations under the selected international agreement.
c) With regard to sectors and sub-sectors excluded from commitments or not specified in Vietnam’s WTO Schedule of commitments and other international agreements on investment, if investment conditions applied to foreign investors are already provided for in Vietnam’s law, such Vietnam’s law shall apply;
d) Where a foreign investor in a territory that is not a WTO member makes investment in Vietnam, such investor shall apply the same investment conditions as investors in WTO members, unless otherwise prescribed by law and international agreements between Vietnam and such WTO members;
dd) With regard to sectors and sub-sectors excluded from commitments or not specified in Vietnam’s WTO Schedule of commitments and other international agreements on investment, if investment conditions applied to foreign investors are also not provided for in Vietnam’s law, the investment registration authority shall consult with the Ministry of Planning and Investment and relevant Ministries;
e) Where a foreign investor permitted to make investment in the service sectors and sub-sectors specified in Point dd of this Clause and they have been posted on National Foreign Investment Web Portal specified in Article 13 of this Decree, the investment registration authority shall consider deciding foreign investors’ investment in the same business lines without consulting with Ministries.
Article 11. Application of investment conditions and procedures to investors holding both Vietnamese and foreign nationality
1. With regard to investments made in Vietnam, an investor holding both Vietnamese and foreign nationality may decide whether to apply investment conditions and procedures applied to Vietnamese investors or foreign investors.
2. If investment conditions and procedures applied to Vietnamese investors are selected, the investor mentioned in Clause 1 of this Article does not have the rights and obligations of a foreign investor.
Section 2. CONTROL AND PUBLISHING OF INVESTMENT CONDITIONS AND INVESTMENT CONDITIONS APPLIED TO FOREIGN INVESTORS
Article 12. Publishing of investment conditions
1. The Ministry of Planning and Investment shall take charge and cooperate with other Ministries and ministerial agencies in reviewing and aggregating investment conditions to be published on National Enterprise Registration Portal.
2. Investment conditions to be published as set out in Clause 1 of this Article include:
a) The business lines subject to conditions specified in Appendix 4 of the Law on Investment;
b) The basis for applying investment conditions to the business lines specified in Point a of this Clause;
c) Conditions that must be fulfilled to make investment specified in Clause 2 Article 9 of this Decree.
3. Where investment conditions are changed according to a Law, Ordinance, or Decree, they shall be updated as follows:
a) Within 05 working days from the day on which the Law, Ordinance, or Decree is promulgated, the relevant Ministry or ministerial agency shall send a written request for update of investment conditions on National Enterprise Registration Portal to the Ministry of Planning and Investment;